Haines v. Phoenix - 151 Ariz. 286, 727 P.2d 339 (Ct. App. 1986)

Rule:

By the enactment of Ariz. Rev. Stat. § 9-462.01(E), the legislature has provided a standard by which to review zoning decisions in addition to the usual constitutional standard. That standard is consistency with the general plan. In its review, however, the court does not substitute our judgment for that of the duly elected legislative body, the city council. The court's review consists of viewing the record that was before the city council and determining if, from that evidence, the council could have decided that despite the deviation from the letter of the plan there was consistency. The burden of proof is still on the plaintiff to show inconsistency.

Facts:

On January 1, 1974, Arizona's Urban Environment Management Act (act) became effective. The act requires municipalities to adopt long-range, general plans for urban development. The act also authorizes specific plans.The act requires municipal zoning ordinances be consistent with the general plans (A.R.S. 9-461.01(E)). On July 3, 1979, the city adopted two plans -- the Phoenix Concept Plan 2000 and the Interim 1985 Plan. It is disputed whether these plans are general or specific plans as defined by the statute. This action arose from the Phoenix City Council's granting of a "height waiver" for a highrise office project that is proposed to be constructed by appellee Adams Group on 14.48 acres of land on Central Avenue between Glenrosa and Turney avenues in Phoenix. The property was zoned C-2H-R (intermediate commercial highrise) and subject to a 250-foot highrise limitation. The 1985 plan also limits to 250 feet buildings in the area in which this parcel is located. On July 29, 1983, the Adams Group submitted an application to amend the city zoning ordinance to permit a building on the parcel in excess of the 250-foot height limitation. The rezoning application was heard by the planning commission on November 16, 1983. That body recommended denial by a 3 to 2 vote. Pursuant to § 108-J.1 of the city zoning ordinance the Adams Group requested the city council to hold a public hearing on the application and not to adopt the planning commission's recommendation. Two hearings were held, on December 19, 1983 and February 6, 1984. On February 6, the city council approved a rezoning which allowed the Adams Group to erect a 500-foot building. Appellant Haines then filed this action alleging the city council's action is inconsistent with the general or specific plans and therefore is in violation of A.R.S. § 9-462.01(E). Appellees argue that the city had not adopted either a general or specific plan at the time of the city council action and the only issue before the city council was whether there was compliance with § 412-B.2-F(1) of the Phoenix Zoning Ordinance, permitting height amendments. The trial court entered summary judgment finding that the city council's action did not violate A.R.S. § 9-462.01(E), and therefore dismissed appellant's complaint.

Issue:

Did the rezoning order comply with A.R.S. 9-462.01(E)?

Answer:

Yes.

Conclusion:

The questioned rezoning did deviate from the general plan in that it surpassed by a large margin the 250-foot height restriction. The plan, however, has other goals for that area. The plan does provide that gradient areas where this proposed building lies will have some concentrations of landuse in sub cores. Also there is a provision for commercial development of the Central Avenue corridor. The building height restrictions are only stated in precatory language. Additionally, the plan provided for open space in the gradient, encouragement of landscaping, areas for people to enjoy and commercial development. The city council had before it evidence that this building would be commercially beneficial, would provide open spaces and recreational areas, landscaping, etc. The council also heard testimony that the developer could build two 20-story buildings which would leave less open space and less potential recreational areas. In viewing the above evidence, we cannot say the city council was wrong in finding the rezoning in basic harmony with the general plan. We do not need specific findings by the council to come to this conclusion since we have viewed the same evidence the council viewed. Certainly written findings would be preferable, but they are not mandatory.